Mahendra Kumar Patwa vs Axis Bank Ltd. & Anr.

28.11.2022: Company Appeal (AT) (Ins.) No. 1385 of 2022 and Company Appeal (AT) (Ins.) No. 1386 of 2022 - In these two appeals common issues have been raised and hence they are being disposed of by this common order.

In Company Appeal (AT) (Ins.) No. 1385 of 2022, appeal has been filed against the order dated 07.11.2022 passed by Adjudicating Authority (National Company Law Tribunal), Indore Bench in C.P.(IB)/17(MP)2021. IA No. 213(MP)2022 filed by the Appellant under Rule 11 read with Section 96 of IBC, 2016 on which application the Adjudicating Authority took the view that since constitutional validity of Section 95 is still pending before the Hon'ble Supreme Court, the matter is adjourned to 20.01.2023.

Similarly in Company Appeal (AT) (Ins.) No. 1386 of 2022, the order dated 07.11.2022 in C.P.(IB)/3(MP)/2021 has been challenged, passed in IA/212(MP)2022 which is to the following effect:-

"IA/212(MP)2022-This application is filed by the Monica

Patwa under Rule 11 r.w. Section 96 of IBC, 2016. Constitutional validity of Section 95 is still pending before the Hon'ble Supreme Court, hence, the matter stands adjourned to 20.01.2023."

The submission of Appellant is that Interim Moratorium has already been directed under Section 95 of the Code on 18.06.2021 and 23.07.2021 respectively. However, the proceedings under SARFAESI are proceeding against the Appellants. In Company Appeal (AT) (Ins.) No. 1385 of 2022, notice for taking possession have been issued and in Company Appeal (AT) (Ins.) No. 1386 of 2022 notice u/s 13(2) has been issued.

Learned Counsel for the Appellant submits that the Adjudicating Authority ought to have considered the interlocutory applications filed by the Appellant praying for interim relief on merits which was simply adjourned.

Learned Counsel appearing for the Kotak Mahindra Bank submits that since the Appellant wants to press his application, the Adjudicating Authority may be requested to consider the application afresh and no purpose will be served in keeping the appeal pending.

In Company Appeal (AT) (Ins.) No. 1385 of 2022 notices were issued. Learned Counsel for the Appellant submits that he has already served the Respondent but no-one has appeared.

In view of the facts of the present case, where IA is filed by the Appellant, we deem it fit and proper that IA No. 213(MP) 2022 and IA/212(MP)2022 which are pending before the Adjudicating Authority be considered afresh on merits. It is for the Adjudicating Authority to consider and take appropriate decision on the said applications.

With these directions, both these appeals are disposed of.

[Justice Ashok Bhushan]

Chairperson

[Mr. Barun Mitra]

Member (Technical)

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